(This interview is also available in annotated segments, in case you're looking f'or something specific or are not sure where to start.)

Full Interview

After pouring three years of her life into making the film, and having great success with audiences at festival screenings, she now can't distribute it, because of music licensing issues: the film uses songs recorded in the late 1920's by singer Annette Hanshaw, and although the recordings are out of copyright, the compositions themselves are still restricted. That means if you want to make a film using these songs from the 1920s, you have to pay money — a lot of money (around $50,000.00).

It's a classic example of how today's copyright system suppresses art, effectively forcing artists to make creative choices based on licensing concerns rather than on their artistic vision.

The music in Sita Sings The Blues is integral to the film: entire animation sequences were done around particular songs. As Nina says in the interview, incorporating those particular recordings was part of her inspiration. To tell her — as many people did — to simply use different music would have been like telling her not to do the film at all. And that's part of her point: artists "internalize the permission culture", which in turn affects the kinds of art they make.

Sita Sings The Blues has been nominated for a "One To Watch" Spirit award and won a Gotham "Best Film Not Playing at a Theater Near You" award, as well as "Best American Feature" at the Avignon Film Festival, "Best Feature" at the Annency Animation Festival, and a Special Mention at the Berlinale. Famed film critic Roger Ebert has raved about it. But the film remains undistributable as of this writing; Nina is trying to work out an arrangement with the holders of the monopolies on the music that inspired her. If you'd like to donate to support Nina, you can do so here.

(2009-12-16: she eventually did pay them off, and then released the film under a free license. You can buy a DVD, or download it online. Buying a DVD directly supports Nina, as do donations obviously.)

63 Comments

speaking as musician - you were well aware that you did not create this music and there fore that you had no "right" to use it in your film.
There are no "terrorists" here- simply your hubris in thinking that you were above the law because you are an artist.

Any thoughtful adult knows that though music might be " old" that there may very well be claims to the ownership... if your characters showed up on pajamas and as toys and sippy cups that flooded the market I doubt that you would sit back and smile- you would - like any one else, demand your share of the profits...

perhaps now you have learned an important negotiation deal point- an agreement made before the fact is cheaper and makes more sense, than a deal made after you have borrowed the other persons property.

Since when is one not allowed to use music that one didn't create? That's what musicians do!

Nina doesn't think she's above the law. She's arguing in this interview that the law is wrong. That's the same claim made by any civil disobedience initiative. Although, in this case, Nina was more following her muse than engaging in civil disobedience for its own sake. But I'm glad she did, otherwise a wonderful film wouldn't exist.

Don't be so sure that Nina would demand a monopoly right (the formal name for the "share of the profits" you mentioned) if her characters started appearing on sippy cups. She might enforce trademarks -- that is, protect her reputation from any implication that she endorsed this activity -- but that's different. And you definitely shouldn't be sure about the "like anyone else" part: I know plenty of people (including myself) who have seen their works circulate freely, including as commercial derivatives, and not been upset at all. The derivers don't have a monopoly, I don't have a monopoly, everyone's happy.

A specific example: a book I wrote, which was published but also released online under a free license, was seen by a friend of mine in a Chinese translation in a bookstore in China. She brought me back a copy. I've never received any money for that translation, but I wasn't upset -- they were spreading my book! Same goes for the volunteer-led online translations of my second book, although (as far as I know) those translations have not been printed for sale in bookstores. Yet :-).

You might respond: "Fine, you were happy with that, so it's okay for you. But not all artists are happy with that arrangement for their works."

To which I would answer:

Why should anyone -- the artist, or the publisher, or anyone else -- get to decide who can copy what? Why have any monopoly at all? When a publisher "chooses" to enforce copyright restrictions, they are taking away *my* choice to copy and derive. Whereas when I copy and derive, I am taking no choices away from anyone (except the bogus choice of "choosing" to restrict others' freedoms). If you run a magazine store, and someone opens up a similar store just across the street, you might be unhappy with that, but you would never claim that they violated your moral rights in doing so.

Unless you consider official support for one particular business model to be a moral right?

A note about language:

Sometimes people like to say "It's the author's book, so she should decide who can use it." Well, the word "author's" there can mean two different things: there's the associative sense (the book is associated with this author, because she's the person who wrote it), and then there's the possessive sense (the author actually *owns* this object, that is, has a state-supported monopoly on its use -- which is all that ownership is, legally).

The associative sense is perfectly reasonable when applied to copyable goods like books, songs, etc. The possessive sense is not. It would be much more appropriate to apply the possessive sense to the author's particular copies of the book, which are actual objects she owns. She can do what she wants with her copies, you can do what you want with yours, I can do what I want with mine. We possess them, as actual things. But no one should possess the book itself: it is a work of the mind, and there is no reason it needs to be possessed by anyone. It's not like a pair of pants, where only one person can wear it at a time, and therefore we need to have a system for deciding who gets to use those pants. Possession makes sense for those kinds of things; but the kinds of works that are currently subject to copyright restrictions are, by definition, never those kinds of things.

Her ability to share the results was hindered. When you're an artist, that's everything: you make art to communicate. If you're going to be silenced, you might as well not bother. How many painters would paint a painting if they knew it would be put in a dark room forever once they were done?

Nina didn't complain about inability to make a profit; she complained about inability to show people her film.

I completely disagree with your premise that art is made exclusively for showing other people. I know dozens of artists who HAVE to make their art, for themselves and their own personal expression, and many of them NEVER show their art to anyone else.

It is deeply important to them as artists to make the art, and completely irrelevant whether others see it or not.

Nina's statements about how she "couldn't not make this movie" etc etc say to me that this art was necessary for her to make as an artist. That's awesome. Nobody can stop you from doing that, or using whatever music you want in doing so.

You can even show it to your friends, and nobody can stop you. But a film festival audience is not a group of "your friends", and neither is the audience who might view Nina's art in a wider release.

I stand firmly by my conviction that it is not her ability to make her art, or to be an artist, only her ability to profit from it (as an artist and a business person - the two are one and the same in many ways) that has been hindered by the "unfortunate" law that protects other people's creative properties from unlicensed usage by lazy freeloaders.

So do you think there's any way for an artist to share her work without "benefitting commercially"? Or should artists just not distribute their work?

(Not that I think commercial benefit should be the test of whether something is right or wrong anyway. I don't see why Nina shouldn't benefit commercially from her work, as long as she doesn't do so by exercising a monopoly that restricts others from sharing things.)

You seem to be proposing some theoretical universe in which artists are "free" to "create", just not to share freely what they've created (including derivative works). That's useless for the vast majority of artists, your particular acquaintances notwithstanding. Artists want people to see their and hear their work. To restrict the spread of the work is to restrict the artist's freedom. (Ask anyone who came of age in a totalitarian country how they feel about being able to share their art with just their friends, so long as they don't broadcast it.)

You think that works of art should be "owned". Most of us would agree that the reputation associated with having created something should be owned -- reputation is non-transferable and obviously cannot be shared. But owning a special right to restrict other people from sharing the work itself is different. That kind of ownership is a relatively new concept, legally speaking, and has been controversial since it was invented. Copyright was not invented in a vacuum, it was invented to regulate the printing industry, and there have been debates about it ever since.

So it's not some kind of natural right; it's a statutory monopoly whose utility (and morality) are getting more and more questionable every day that we have an Internet.

Also, neither Nina nor I said anything about it should be okay to show to only friends. We've consistently been saying it should be okay to show to anyone, by anyone. I know you'll still disagree, but at least argue against the real position, not against a straw man :-).

Funny you should mention straw men, as you've got an army of them in your post here. Paragraph by paragraph:

There are plenty of ways for artists to share their work and make money from it. I'm not going to make you a list. I've been doing it for 30 years.

(I don't see why Nina shouldn't benefit from her work either, as long as the rightsholders for other works included are also paid what they feel they are worth. That's the whole point.)

I'm not proposing a theoretical anything. Artists ARE free to share what they've created. Not market it. Share it. Restricting the spread of work because that work infringes on another's work is not anything in the least like living in a totalitarian state. Straw Man 1.

Owning your work is a fundamental cornerstone of allowing artists to freely create without fear of their life's work being appropriate freely without compensation. I've spent thirty years making music, and am just now starting to see some returns that are more than just subsistence, based on work I've created over the last 3 decades. You say I should be proud to be the creator, give up my product's distribution and usage restrictions so everyone else can use it without paying? Not a chance. No artist (except wealthy ones and ones trying to make a point after they've been called out) would agree to that. Straw Man 2.

A statutory monopoly, not a right? Says you. I created my work, with years of sacrifice, and nobody else owns it, or should profit from it without paying me. The utility and morality of that are clear and as strong as ever. In fact the internet is only clarifying and strengthening the basic concepts of copyright (i.e. that the creator should retain control of his or her work). Straw Man 3.

I know exactly what you and Nina have been saying. You've been advocating for non-licensed usage of a creative work owned by somebody else, because Nina was foolish enough to go ahead with a major piece of work based around some else's property, even though she'd been warned and counseled against it. You can backfill your weak position all you want with cries of, "but all we want is to show it to anyone!", but it's pretty clear to anyone with a decent grasp of the issues that it's all CYA after the fact. Straw Man 4.

To summarize: pay the artists for their work, and you can make your own however you like. Use others work without permission to forward your own artistic career, if you must, but quit whining when you get called out on it.

Courts are pretty consistent on this point: it is not property in the common-law sense, nor is it a "right" in the sense of the Bill of Rights. It's a statutory monopoly, granted by the legislature, extendable by the legislature (which they have done), and retractable or even revocable by the legislature (which they have not, yet, done).

You may continue thinking of it as a right, if you wish, but the law does not consider it so.

(In some European jurisdictions, the situation is more complex, because there is a "moral rights" component that traditionally is considered part of copyright law. But that component is mainly about issues of attribution, so even there, the copying part doesn't really fall into the "rights" category.)

Oh, I just realized you're under some kind of misimpression, when you wrote this:

"You've been advocating for non-licensed usage of a creative work owned by somebody else, because Nina was foolish enough to go ahead with a major piece of work based around some else's property, even though she'd been warned and counseled against it. You can backfill your weak position all you want with cries of, "but all we want is to show it to anyone!", but it's pretty clear to anyone with a decent grasp of the issues that it's all CYA after the fact."

Mmmm, nope. This site, and all the positions expressed on it, existed before Nina made her film, and long before we ever met Nina or got involved with her distribution issues. Check the dates on the articles.

Unrelated to that, you say "infringes on" to mean "is derived from". Since a derivative work (that is, a modified copy) has no effect on the original, this is a particularly bloodless form of infringement... really, I don't see what is being infringed at all, or why anyone should have to ask permission to do it.

Anon. writes about the filmmaker's "using other people's creative property to forward her own notoriety." But: the singer of the music is long dead. The writers of the songs are long dead. The music was recorded eighty years ago. So when you say "other people's creative property," you really mean "a company that once acquired the rights from a long-gone artist that now holds those rights as an investment property." While legally, yes, they own those "creative rights," it's not as if the company wrote or recorded those songs. When you write the filmmaker "uses other people's creative property," you make it sound like she's stealing some current artist's work...recording an impoverished musician and then using the songs to rack up her own fortune. In actuality, it's a company that had nothing to do with actually *creating* the artwork, but instead just holds it as an investment. Quite a different thing, morally.

I'm curious. You say you're a musician. Let's say you have created some original songs. You sell the rights to a company for some amount of money--yay, you can pay the mortgage, you're happy with the deal. Fast forward to the year 2100, long after you and your immediate family are gone. Another artist is inspired by your music and wants to use it. That company won't let them use it--either they disagree with how it will be used, or they're holding out for more cash, or it's not worth their bother. Legality aside, what would you, as a fellow artist and the original creator of the music, want? A new generation of people to hear and appreciate it? Another artist to be inspired and enriched by it? I mean, you're dead, it's not like you're losing anything by letting someone else use it. The world is made a better or happier or at least more artistic place by the re-use. It's different if you're taking money from a living artist, like you imply in your post. But what about something so long gone? I think there's a moral difference between "the creator of an artistic work" and "a company that holds the purchased distribution rights to an artistic work."

Also, as another replier pointed out, musicians do covers of other musicians' work *all the time* at concerts. I might argue that *most* concerts I've been to have had at least one song performed not original to that band. Do you think every one of those bands got permission to do it? No, of course not, even if the law says they have to (I'm not sure it does--concert performances may not count as "commercial use"). So are all those musicians wrong and stealing from each other? As a musician, would you refuse to play anything not completely original to you because it doesn't "belong" to you?

First of all, even to play "cover songs" in concert, you must technically have a license. However, the process has been simplified by performing rights organizations who issue blanket licenses to the venues, so that the musicians don't have to individually negotiate in advance for each piece of music they may cover.

Second, I understand that, with the extremely long term of copyright we now have, many old works by deceased artists are still protected. Then, logically, the artist doesn't need the free promotion of his song. Therefore if anyone comes around asking for a license to use these old songs, there is no incentive to negotiate for a more favorable rate.

Lastly, it seems to me that the problem Nina faces is common only to those artists who base their work off of other people's creative output. If your work was completely original you wouldn't have to worry about licenses.

I am a former IP lawyer and have real problems with people using material they shouldn't (in my view). However, I also had, and have, great difficulties with the appropriateness of Congress having extended copyright terms for the sake of (oversimplified) protecting Disney and Mickey Mouse. Copyright protection may be justified as encouraging creativity, but when the term of protection gets to be too long it definitely stifles it.

I am curious, why not distribute the film in a country without an extended term of copyright, and for which the music is therefore in the public domain such as Canada? (I am assuming that what I read on Roger Ebert's website is correct about dates, do not rely upon this opinion as legal advice!).

That's an interesting solution, and we'll talk to our lawyer(s) about it. Probably loopholes like this are already covered by international treaties.

But again, I must push back against this idea that someone "shouldn't" use material. Why are we handing out these monopolies? To subsidize the already over-subsidized arms race of marketing budgets? We have a world-wide copying and remixing machine; let's stop being shy about using it. Telling artists they can't use each others' work is telling them they can't do art. Among major human art forms, only cinema was invented after copyright (I include television in cinema, but anyway television has historically been funded by advertising rather than royalties). I'm suspicious of arguments that the form can't survive without monopoly protection, given that all the other forms flourished before copyright and are flourishing now in the Internet era: that is, music-sharing (a.k.a. "filesharing") may be hurting the music industry, but it's not hurting music itself at all.

We don't have a shortage of supply. We have a shortage of sharing -- we are obstructed, by antiquated laws, from allowing works to find their natural audience through decentralized distribution. Let's stop solving a problem that isn't there and start addressing the one that is.

It seems to me that the copyright holder is making a large mistake from a business point of view. Many more people will hear these songs if the movie is released. New artists might want to cover them. A little less anger that she didn't clear the rights first and a more practical attitude to negotiation would benefit them more, it seems to me. We're talking about songs nearly 100 years old. Is the demand so large?

You are correct. Generally the owners of sound recordings give relatively cheap deals to moviemakers, since it revives interest in their music (if it is old) or extends the popularity of current music. A good example is "Unchained Melody" by the Righteous Brothers. A megahit in the 1960s. A megahit again in the 1990s. Another example is "Pretty Woman" by Roy Orbison. The movie made the song a hit a second time.

"Generally the owners of sound recordings give relatively cheap deals to moviemakers, since it revives interest in their music (if it is old) or extends the popularity of current music."

We are discussing compositions (sheet music, "synch rights"), not sound recordings. Hanshaw's sound recordings are not protected by federal copyright.

Your model would make sense for publishers, but just because it's rational doesn't mean they behave that way. They do not offer "relatively cheap deals" even when it's in their best interest to do so. We all wish they would, but they don't. But if I'm wrong, and you have evidence that they regularly "give relatively cheap deals to moviemakers," please cite some evidence so I can read about it.

Since it would be possible to sell the soundtrack for, like, a dollar a disc/recording... how about if you sold the sound and video seperately and added a link to software that can be used to join mp3 (or whatever) sound with AVI (or whatever) video. ?

This wouldn't get around the cinema "releasability", but perhaps you could convince a cinema in LA to show it for a week with no sound and sell (or give away) recordings of the soundtrack outside. ?

I believe Mozart did something similar when he wasn't allowed show people dancing on stage while music was being played. He just showed the silent dancing.
Thankfully now everybody has access to personal music players. Maybe you could hire these out too at cinemas. ?

As a gimmick alone -and as a show of solidarity, not to mention the thrill of rebelliousness it would be a great draw. And you'd be eligible for Oscars... in 2010 now obviously. :(

I hope this helps.

Incidentally, I've written a highly-original novel that has had nothing but praise, but can't get noticed because it's not similar enough to anything else. It's called OOYAY. It's available online.
We all have our problems I suppose. ;)

I find the title of this article disingenuous. Either the filmmaker was incredibly naive, to think that she could use other people's IP without paying for it, or she thought they were going to give it away to her because she made a wonderful film.

If someone else came along later and wanted to use her film as a basis for a new audiovisual work (assuming the music issue was resolved), would she let them use it for free? Or would she feel justified in charging what SHE considered to be a fair price for the use of the movie?

The fact is, copyright law generally gives the copyright owner the right to decide if his/her work can be used by someone else, and if so, what the value of that use is. If she didn't like the cost, she could have looked for other songs to use, instead of pushing ahead with her work regardless.

If anyone is to be blamed in this sad situation it is her, not the song owners.

When we have a nearly zero-cost worldwide copying and remixing machine (and one that makes it easy to trace attribution, too), then restricting people from using it is censorship.

For centuries, artists did not have to ask permission to use each other's work. Copyright was only invented in the early eighteenth century, and primarily to support and regulate the printing industry (to ensure a sustainable distribution mechanism for printed material), not to support artists, which it doesn't do a very good job of anyway.

Now that we have an Internet, though, and that old regulation is starting to be problematic...

Nina favors freedom for everyone. She's fine with it if you want to use her film in a remix or a derivative work, or even just copy it and screen it verbatim. You don't have to ask her permission first.

...I'm not sure if I should be offended or embarrassed. So, I get the feeling that the artist thinks that music/audio should be free, but she wants to distribute her film on disc to make a profit to make up for the 500 festival/noncommercial sync fee?

I guess the musician in me should in turn believe that visual mediums are free. How about I take her film and put my own music to it and sell it?

Too simplistic I know, but I can't believe this conversation is even being had.

See my earlier comments: she thinks her film should be liberated too, and she's putting her money where her mouth is. Yes, anyone would be free to remix it with other music or anything. True freedom, top to bottom.

Yes, you can use her animation for free (if you can clear the music rights, which, of course, she does not control).

Nina really is in favor of freedom here. People are so conditioned against expecting this particular form of freedom that they literally can't believe she's offering it. YES, you can use her film in a remix or derivative work, YES you can make money from that (as long as you don't impose more restrictive terms), YES you can do it all without asking her permission or even informing her.

How much more YES will it take before we have a system that says YES by default?

As someone who has worked in the business of licensing music for film and television projects for some time (not on the publishing/recording side, but on the side of filmmakers, many of them independent like Nina), I take strong exception to Nina's argument that her situation is unfair. There is no "fair" or "unfair" in copyright, only the law. And whether or not the law is just, it is *the* law. Yes, the publishing companies (both behemoths like EMI and indies like Bug) are in the business of making money, but that doesn't mean that they're being punitive by enforcing their copyrights or expecting filmmakers like Nina to seek licenses to use those copyrights in their work.

I have found the publishing companies and their representatives to be eminently reasonable and easy to deal with. They are often extremely sympathetic to low- and no-budget productions. The $500 festival fee Nina speaks of may seem high, but there is a substantial amount of internal paperwork and approvals that need to take place in order to process the license. In effect, music publishers do not make any money off festival licenses (or if they do, it's a nominal profit). They require festival licenses because if they let anyone use their copyrighted material willy-nilly they have no legal legs to stand on when someone does legitimately violate their copyright; they must track and justify every use so they can maintain their copyright in the correct manner and still retain the ability to prosecute copyright abusers.

I understand that, as an artist, Nina was inspired by these old songs and used that inspiration to create a beautiful (and in turn inspiring) film. Inspiration can come from anywhere, and woe is the artist who ignores her muse. But Nina admits that people were advising her early on to avoid using copyrighted music. She admits they warned her of exorbitant licensing fees. She knew well in advance the potential issues she would be facing. The word for such behavior is not naivete but rather willful ignorance.

Also, final note: Attorneys at high-priced law firms are not in the business of licensing music; they're in the business of enforcing copyright. Think about who actually controls the money to be able to afford the $500+ hourly these firms command: that's right, the copyright holders. There are probably dozens of independent music clearance folk out there who would have been happy to help Nina clear the songs -- and likely would have been able to secure better fees than those by Greenberg-Traurig. I would advise anyone else in Nina's situation to get a Music Registry guide and call the music supervisors listed therein for help. Music supervisors and professional clearance people deal with the publishers and record companies on a daily basis and have deep personal relationships which may make it easier (and definitely cheaper) to secure music licenses for indie projects.

Best of luck, Nina. The system didn't screw you. You just failed to abide by its rules.

There have been many unjust laws in the history of the world. Some of them even here in Nina's (and my) home country of the United States.

So are you saying that because it's a law, she's wrong to oppose it? Is that what you think the civil rights protestors should have done back in the 1950s and 1960s? Or the people who resisted legally-permitted environmental degradation in Appalachia? Or...?

I just don't get it. Nina is opposing a bad law, and we'll all be better off for it someday. You seem to saying that law is law and that it is never right to oppose a law, regardless of whether the law is just. Thank goodness many people in the past did not take that attitude...

By the way, copyright law is not "use it or lose it" the way trademark law is, as far as I know. You can still enforce your copyright in a given instance even if people have been violating it in other instances (would welcome corrections from lawyers, though).

I believe you do understand the argument, kfogel. The problem is that you're conflating the "unjustness" of copyright law with truly egregious and inhumane laws like miscegenation and Jim Crow. You're diminishing the suffering of people under those laws by comparing them to the situation Nina is facing. It's not only disingenuous, it's borderline insulting.

Copyright law isn't harming anyone or preventing anyone from exercising any rights (and I know you're going to go straight for "violating my First Amendment rights," but that's simply not true for a variety of reasons). Copyright laws simply protect copyright holders from unlicensed and unapproved copying -- or use, if you will -- of their works by someone else for that other person's commercial use or public exhibition. Nina has every right as an artist to listen to that music, draw inspiration from it, even incorporate it into her work. The line is drawn when she attempts to profit from such work, and like it or not, seeking distribution equals attempting to profit. Nina may not profit personally from such an arrangement, of course, but someone (i.e., the distributor) will. One way or another, tickets will be bought and money will exchange hands. Therefore someone must acquire the appropriate permissions for the music. Even "free" film festivals have a liability, which is why they typically refuse to exhibit films without secured music licenses (same goes for other types of clearance, including image and likeness).

Again, Nina is not being personally harmed nor is she having her rights trampled in any of this. If, as she says, she "needed" to make this film because she was inspired, that's all well and good and proper. And she did make the film. No one told her she couldn't. The only thing she can't do is commercialize her work. That's not unfair. That's not unjust. That's not inhumane.

As far as copyright law not being "use it or lose it," you're demonstrating a naivete, if you will, about trial law and precedent. It's much harder to sue for damages in court if it can be shown that past enforcement of coypright has been lax or inconsistent.

Copying and remixing and making derivative works is a civil right (and much art has always depended on that right, if you actually look at the frequency and nature of derivation). We have a worldwide, zero-cost copying and remixing machine now -- the only question is, are we going to let ourselves use it?

I never said this was equal in human suffering to Jim Crow laws, I was merely making the point that just because something is a law does not mean it is right. In this case, the law is quite wrong.

Copyright doesn't only restrict commercial use, by the way; it restricts almost all distribution. Nina is prohibited from releasing her film even for free, and that would be true even if no one ever sold a ticket to a screening.

After thinking about it, it seems in a basic sense we're quibbling over the definition of the word "copyright". I believe it to have a broad definition encompassing the right to control the use of a work owned by the copyright holder. You believe it to literally mean the ability to make (or restrict the making of) a physical copy of a work. That being the case, you'll always see copyright law as restrictive and punitive, since in the digital age, as you say, the ability to make a copy is as simple as hitting CTRL-C: in this world it costs nothing to make a copy, and as such, copyright holders are relying on an antiquated, perhaps quaint, privilege. I would argue, of course, that your argument is strictly semantic and smacks of loophole-ese. In any event, it is inarguable that Ms. Paley's right of free expression was not infringed in any way. Ms. Paley only took exception to her situation when she wanted to exploit her work commercially to recoup the money and time (and time, as we know, is money) she invested in its creation.

Similarly, the contention that copyright law is restricting free distribution is, to my mind, somewhat misleading. The fact is that while Ms. Paley might not receive a direct financial benefit from distributing this particular work for free, she is unquestionably receiving attention as a result, attention to her work and and attention to herself as an artist. This benefit may be intangible (perhaps worthless) now, but it has a substantial upside when it comes to her subsequent works: she will benefit from the exposure of this film by building an audience of fans who will undoubtedly pay for her work in the future. That being the case, I don't see how it's unfair for a copyright holder to ask for compensation for her use of copyrighted material. Even if her work is to be distributed for free, she is still indisputably exploiting existing copyrights.

Unless, of course, as you say it's merely an issue of creating a physical reproduction.

There seems to be little discussion about the exorbiant cost of using this music. For instance, Anon. says "there is a substantial amount of internal paperwork and approvals that need to take place in order to process the license" and that's why the festival fee is $500. But it's the copyright holders themselves that are creating that "substantial amount of paperwork". And since they are the only ones with the rights, it's not as if an artist can shop the competition. It's a monopoly.

Secondly, why is the licensing fee for 80-year-old music up in the hundreds of thousands of dollars range? Again, it's the copyright holders that are setting the prices, right? Why don't they let her have the rights to the music for an affordable rate? It can't cost the corporation $220,000 to sign a piece of paper giving her the rights to use the music commercially. The singer of the music's long dead. Therefore, the only reason the corporation is charging that much is because they have that monopoly. It seems they're cutting off their nose to spite their face, since they could be getting exposure, and at least some money if they charged a more reasonable fee.

I think the anger here is partly one against copyright law, which is, as Anon. points out, the law, and difficult to argue against; but it's also against the greed of the copyright holder, which could easily choose to offer the rights for a reasonable cost, but doesn't, to everyone's obvious loss. There are those on this thread that say that the copyright holders are in the right, but I ask you to tell me: who actually wins anything in this situation? The singer of the music? No. The filmmaker? No. The public? No. The copyright holders? Considering they're not getting anything other than festival fees... No. In contrast, if they copyright-holding corporation gives in and charges a modest amount--maybe just the cost of actually doing the paperwork, plus a small fee--that the artist or the distributor can afford, then everybody listed above wins.

I'm unsympathetic to the claim that copyright holders have a monopoly on their copyrighted works. It's entirely a subjective argument. There are, quite literally, hundreds of thousands, perhaps millions, of extant songs, both under and out of copyright; there are innumerable toys to play with on this playground. To say that there is only *one* song that's appropriate for (in this case) use in a film scene is to be unreasonably obstinate. Indeed, it is common for filmmakers to cut their film to a specific song. However, unlike Nina, those filmmakers typically seek clearance during the post-production process (or production, if the song is being lip-synched) to ensure they'll be able to release the film as creatively intended.

The reason there is a "substantial amount of paperwork" is that these mega-publishers administer many thousands of copyrights and thus employ dozens upon dozens of people in various departments to track royalties, process licenses, etc. These huge publishers are machines, and like it or not, anything less than $500 is not worth their time. That's their prerogative. But not every song is owned by a conglomerate such as Warner/Chappell. There are many indie publishers more than happy to work with filmmakers in a variety of creative ways such as step deals and contingency deals that minimize the up-front licensing costs. In addition, there are many easy to find music libraries and indie musicians who specifically create sound-alikes and genre melodies for film/television/advertising use which may be licensed for pennies compared to more recognizable alternatives.

Finally, the assertion that the big publishers are "cutting off their nose(s) to spite their face" is a misunderstanding of the dynamic at work. A song like "Satisfaction" doesn't require exposure in a tiny indie film; similarly, a Billie Holliday standard doesn't need "refreshing" in a low-budget feature distributed on the Internet. These are the catalog songs -- the crown jewels, if you will -- that make companies like BMG and Universal publishing royalty. Yes, many record companies try to "break" new artists by licensing their songs out at a pittance, but typically this is done in accordance with the associated publisher (who make far more on mechanical royalties and therefore would like to promote new albums) and even then it's more common for those songs to be licensed for a limited term and/or be subject to a step-deal.

Just to reiterate, I'm not arguing that copyright law isn't arcane or incorrectly applied. I'm simply saying that I don't have sympathy for Nina's situation. She knowingly painted herself into the corner she's in, despite the fact that numerous warnings were made and exit strategies offered along the way.

Good points, Anon, and I appreciate your clarity. You're right about the filmmaker maybe going a different route with the music to start out with...but it is an indie filmmaker doing it on her own. If I were to make a film, which is certainly possible with today's tech, I wouldn't have the first idea where to get public-domain music. I might well pull something inspirational out of my collection and use that. As an artist, I can see getting attached to the music that inspired me and not wanting to compromise, especially the way this filmmaker uses it. I certainly wouldn't have expected just the *rights* to 80-year-old music to cost $220,000, probably way more than the film cost to make, and I too would have been shocked and angry to find that out.

I've read elsewhere that she always intended to pay for the film rights, but was surprised at how much they were. She states above that she couldn't deal with the companies directly, but had to hire intermediary lawyers, and only then could find out how much it would cost. I think her point, which I'm sympathetic to, is that all of those costs are incredibly stifling, and if artists had to jump through all these legal hoops and spend so much money before they ever started, lots of art would never be created. And not everyone has the time to do that kind of research.

Anon, in the third paragraph you argue that publishers that have "catalog songs" don't need their songs exposed in a tiny indie film. However, I would be willing to bet that 98% of people who saw Sita (myself included) did not know the name Annette Hanshaw before seeing the film. I can't believe that the publishers need to charge this much. Further, I've since read that the filmmaker and her negotiators have gotten the price of licensing the music down from $220,000 to $50,000. Which is great, and more achievable, but it makes you wonder about what kind of greed determined their original price. I doubt they're losing money at $50K, which makes the $220K asking price even more outrageous. If the asking price for something you wanted was $10,000, and then the price went down to $2,000, wouldn't you be a bit peeved about their gall in asking for the original amount? What if you knew the actual cost of the thing was $200?

I guess there are a few issues here, none of which we'll solve tonight: the extent of copyright law; how prepared artists need to be; or (my nettle) the apparent greed of this particular publishing company. Anyway. It was a great film, and I hope it gets out there somehow.

I agree nothing will be solved tonight, or likely in the near future, regarding these copyright squabbles. But a few quick points:

- Synch license fees are not arbitrary. Quotes for use are based on an equation involving a multitude of factors including but not limited to the film's budget, the film studio/distributor (if one currently exists), the nature of the use (is it a "featured" use, a background use, an on-screen vocal, etc.), duration of the use, the territory for eventual distribution (i.e., North America, Europe, the World), the term of the use (the number of years you're seeking a license, typically in Perpetuity), the recording of the composition you intend to use (the Stones version of "Satisfaction" is priced at a premium as opposed to, say, your next-door neighbor's band's cover version), and so on. The calculation has some wiggle room, but of course, every publisher will insist on most-favored nations status, which guarantees that their fee has parity with other publisher's negotiated fees, if higher. Having worked in music clearance, I can say with great confidence that the initial quote of $220,000 had less to do with sheer greed and more to do with a general lack of information about Nina's project; it's likely that the initial quote of $220,000 was a "standard" quote for Worldwide use in Perpetuity, which means that the person requesting the use didn't specify that this was a low-budget, independently financed film without a current distributor, etc. (the reduced quote of $50,000 most certainly reflects a more accurate price once this information was supplied to the copyright holders).

- Annette Hanshaw is merely the recording artist not the songwriter. Her recordings are in the public domain (most of them, anyway). What is at issue is the clearance of the underlying compositions -- the songs themselves. It's indeed wonderful that a film like this has exposed an obscure artist like Annette Hanshaw to a new audience, but Annette Hanshaw did not write the songs in question. These songs have likely been performed by many artists over the decades, which is what makes them "catalog" songs. See the point above about your neighbor's version of "Satisfaction."

- I've read Nina's blog as well, and it's clear that while she intended to pay for the licenses, she proceeded to marry her film to the music despite cautions from people with experience in copyright that the fees would be high for the use of said music. Nina also expressed dismay that copyright legislation extended the copyrights of the songs that, quote, "were supposed to enter the Public Domain in the mid-1980’s." Perhaps those compositions were supposed to, but they didn't. The policy of extending copyright is definitely an issue to be debated but the use of a pre-existing extension as an excuse as to why you shouldn't have to pay for the use is not.

- Finally, also in her blog, Nina clearly states that she wishes to profit from her work. Whether by "donations" or ticket sales, it's still money in her pocket being generated by her use of copyrighted works. To be clear: she is exploiting those copyrighted works in her own copyrighted work (on the film's website there is a very clear copyright notice in the middle of the page that says (copyright)2008 by Nina Paley Productions, LLC).

Roger Ebert seems to appreciate the unfortunate consequences of current copyright law. Perhaps he could be encouraged to raise the issue more publicly/frequently/vehemently? Ebert, I'm betting, has more pull in some influential artistic/media circles than this blog (no offense) and he seems to have your ear...

Copyright laws were meant to protect the CREATOR and their family because creators typically don't make money right away. Families suffer financially, so the laws were to protect and ENCOURAGE creativity. Not to protect corporations. It's a perversion of the laws in this age of corporate greed.

I have a friend who works at Universal Music Group. I met him for lunch, but first looked at the hallway with photos and stories. Each photo was about a small record company, swallowed up by UMG. They bragged about all these companies, all this music. But they REFUSE TO RELEASE most of their holdings. They keep re-packaging the big sellers. I cried while reading text about "unheard music," music that is lost to us.

My pal can't even convince them to release these digitally (and he holds a prominent position). This is not about an animator who should have gotten permission. This is about suppression of art by corporations who shouldn't have control. Thanks to Disney, we are all robbed of our cultural history. It's why I won't leave my photos to the Smithsonian or a major photo agency. They just sit on their assets.

Most photographers get $50-200 per photo for print, DVDs, etc. Major photo agencies license images for even less. My whole archive, tens of thousands of very valuable historical photos, many world-famous for over 33 years, isn't worth $220,000. In fact, most of the most famous rock photographers have archives worth less than $220,000. That's a TOTALLY ARBITRARY value for music. It's not the Beatles!

Telling the film-maker to use another piece of music is irrational. My fame rests on a handful of photos. I've taken thousands of great shots, but it's a few dozen which the public adores. It's the combination of whom I shot and my talent which results in some of my photos being very famous. You can't say, well pick another photo. It doesn't work that way.

Plus MANY corporations/businesses, large and small, think NOTHING of licensing a TV show or re-releasing a CD and NEVER try to find out who took photos within those projects. Thank goodness I kept receipts from years ago and have been published enough there is never a question of ownership. Thank goodness fans write me about my photos, because I don't have time to track down all the illegal usage, some from MAJOR companies who know better.

I know many photographers with the same story: MAJOR companies, as well as some ones, use their photos in the hope they won't be discovered. Some famous photographers spend a huge amount of time just tracking down photos. Who has time for that? I don't, and that's what they count on. They will steal from you, but G-d help you if you want to use their work, even if you ask permission up front.

These companies will rarely respond if I write about producing a t-shirt with my photos of their clients. I never hear from them. But if I were to create these t-shirts, then they will definitely take legal action. But work with me? Forget it.

And tracking down the rights is problematic. No one wants to say use it the image or not. No one wants to deal with it. Unless I were to release product. So the public keeps telling me to do merch, I keep getting offers, and entertainment companies, managers and lawyers never respond to my requests to work with them.

DO NOT think for a minute companies do unto artists like they expect done until them. They will and have used my work and some given me a VERY hard time regarding paying me. Plus my work is not credited, because fans see the work, tell me, I negotiate for payment, but too late for credit.

It's an unspeakable crime that major companies SIT on music, photos, films, books and other works of art that is deliberately hidden from the public. And when they are offered a chance to get the work out into the public, they only see crazy dollar amounts that HAVE NOTHING TO DO WITH THE VALUE OF THE WORK. How can obscure music be worth $220,000? That's insane in this economy and time of so much free music. This is also why we never seen more than a few seconds of all the great live rock footage which exists. Crazy unreasonable licensing fees.

My sadness is this is something the public doesn't know about or feel hopeless to change. Most photographers throw up their hands and give up. We just allow major corporations to steal our cultural heritage, the things that last, no matter what's going on. Great art, music, books, films are the ONLY lasting thing. Who remembers history vs the great books, paintings, ballets, etc? It's the one thing that unifies all of us, and we are being robbed of it. We have power to change this, but people are afraid of corporations and laws. Even the people who make the art give up!

I stand up all the time and I do prevail. But most photographers roll over and play dead. Until the artists fight for their rights, this will only get worse. And we need the public's help, support and input. We are ALL artists, we have more power than we use. So it goes.

Artists who want their legacies available to future generations without restraint should simply release their art with Creative Commons protections.

But if the IP has a value to the artist, it likely retains some of that value after the artist is dead. Value is money. Just like when someone dies, they may leave their savings to an heir instead of it automatically reverting to public ownership.

If the IP in question never had monetizable value, or was never monetized, and was rather released with a Creative Commons license that survives the death of the original owner, that art would be available broadly and no juggernaut corporation could "rob us of our cultural history."

US copyright and patent policy now perverts and twists the true and clearly stated intent of the law. Congress retroactively and unilaterally changed the deal to please Disney — weaseled out of our original bargain, bribed to strip us of our own culture. Ask anyone on a Reservation if they're surprised!

Two reforms:

Honor the rules in effect when the work was made.

Forfeit the monopoly of trolls who suppress a work.

Mickey Rat was and is fair use — revoke the bad case law.
Unavailable equals abandoned — revert to public domain.

kfogel keeps reiterating that its OK to use someone else's music as your soundtrack as long as there is enough 'time' after their death. Also that Nina believes all of this should be free (even her own art). And keeps referring to a 'global copying machine' that should not be restricted. Just like global war? Weapons? Toxic manufacturing? Are we to become more civilized or more primitive?
If you spent all of your money and time building a beautiful hotel, would you allow anyone who thought they deserved it to move in for free? How do you build the next one? Legos?
Yes, it's too much money they want. But you think, just because they have left this earth...that you can march against their families/friends/business associates wishes and just take it? Sure people all over the world are doing it...why can't we??? Maybe you've done the research to conclude that the copyright holder is an evil corporation - then negotiate, but every artist's work should be free?
As a filmmaker, I have learned over many years about the difficulties of making films - and hey...this is one! While a painter needs to solve achieving a proper color...the filmmaker needs to solve music rights beforehand, or compose new music. It's easy to be inspired by music. Experienced filmmakers know what is available and what is not, and proceed accordingly. And it seems you will need to do the same. In all sincerity, best wishes. Your battle may be won, which will be a triumph for an artist who will not be disappointed. While the rest of us make art with full embrace of compromise. .

Oh, I haven't been saying copying should be okay as long as it's long enough after the author's death -- I've been saying it should be okay, period.

Since you seem to equate copying with global toxicity, I'm not sure where to go from there :-). Copying, derivation, imitation... they're basic human activities. Art has always depended on them, and it's only quite recently that we began restricting them, actually.

For example, today "derivative" is automatically a pejorative when applied to art, and "original" is usually assumed to be praise. But why?

Seriously, think about it: what does derivativeness or originality have to do with the quality of the art? Is Verdi's great opera "MacBeth" less great because it's a derivative work of Shakespeare's play?

Copying is part of what makes us civilized. We should do more of it; then maybe we'd have more common ground.

The upshot is that Nina's artistic voice was not silenced, she was able to make and show her film using the music she chose. If she's going to release it commercially, she stands to gain monetarily - directly and indirectly. Directly she stands to gain however much or little from the box office gross and whatever her portion of that would be (likely small).

Indirectly, by qualifying her film for an Oscar with a commercial release, she stands to gain in terms of recognition and payment for future projects she may be hired for as a result of this film being officially recognized through the Academy system - a system within which all the other candidates played by the rules.

The people who own the intellectual property have the right to demand payment for its use outside of "fair use," and apparently they have made the demand. Just like Nina might not be thrilled with someone copying her film and using it for self benefit without her consent, so should she realize that intellectual property rights extend to the people who own the IP she is looking to use so freely and without remuneration.

But you may not be the only one in the profit picture. Distribution channels will want to make a profit, including the theaters that show the film. To some extent - apparently an importantly large extent - the music makes the film (thus the struggle). Because someone in the distribution chain will be making a profit, and because the music plays an important role in the film, the owners of the copyright can claim that part of that profit surely belongs to them.

basis of copyright is if its not your property, its is someone elses. The lady in the clip is nice, hard working, well meaning but was aware. in advance, several people cautioned her that there would be problems if she went ahead and poached someone elses music

If her supporters, fans and artistic community as well as the apologists on this page who defend her for swiping audio energy really mean what they say, then they should consider donating serious cash towards her buying the rights for the music. then waiting for repayment after the artist releases her film commercially...

Had she not poached, and sought a deal prior she may well have got it for far less than the gunpoint $50,000 had she but asked.

For much much less than $50,000, she could have hired a whole living artist musical team to compose, arrange, record and mix a similar if not superior soundtrack: thus by pass the poaching option, which we see, was a dead end for hr project.

BTW I am also a cartoonist/ animator' well meaning adult creator- I live by leasing my work to honest commercial clients. When I see my work poached, I show zero mercy in hunting the " borrower" down.....Copyright is not a meadow to roll out excuses- it's either your property to do what you wish with,or its not your property and you are obliged, morally and legally to obtain permission. This is a sad story and the lesson is-

nice people who poach
end up in the same dead end
as bad people who poach

Every day you steal someone elses energy
is one more day you will not do something original yourself

Culture may be co-opted but it can't be "stolen". History may be rewritten but it can't be "stolen". Something that has been legally bought or sold can not have been "stolen". To accuse corporate entities of stealing is hyperbolic at best, disingenuous at worst. Just because you feel persecuted by the fees those corporations wish to charge -- which is their prerogative -- does not in actuality mean a true persecution is taking place.

No one is forcing his way into an innocent artist's home and garnishing just-completed works to give up to Big Media. Big Media acquired their copyrights in accordance with existing law (flawed though you or others may believe that law may be). Their ownership of those copyrights in no way inhibits anyone's freedom or creative expression. In your admonishment to Big Media to "do something original themselves," you fail to take into account that your own work is only partially original itself; your use of existing recordings and copyrighted compositions forms the entire foundation of your animated film (by your own admission). That observation is in no way meant to diminish the creativity of your art but merely to expose a glaring double-standard in your argument.

The fundamental issue is the rights granted to corporations. Corporations are not human beings and should not be afforded the same rights. The justification for copyright laws are generally BS (illegal downloads really aren't hurting artists, except maybe Metallica).

The first thing to do is to have the courts clarify that the rights of individuals do not apply to corporations. The second thing to do is to limit corporate power. The third thing is to rewrite copyright laws so they promote rather than stifle creativity.

Way back in the 70's, everyone would "copy" songs off of the radio onto cassettes, and copy other peoples cassettes, and there was no issue. No one complained, and no one "lost" any money by doing this. In fact artists would actually benefit from people hearing their music in this way, because it led to those a lot of new people buying their music when they otherwise wouldn't have.

The way musicians really lose money, is from the corporate entities gaining an unimaginable percentage off of their work. For example, Metallica alienated many "fans" by going after the people (who probably purchased at least some of their music), instead of going after the corporations that take most of the profits. I am not really a fan of theirs, but i remember thinking "what a bunch of greedy idiots, now they just look like fools". They(Metallica) would have been better off to dump the record companies and promote themselves, and forget about the copyright issues. They would probably made alot more money, and at the same time set a precedence for new artists.

I spotted Nina as a unique talent at just about the time she graduated from high school. I commissioned a chalk drawing which I later lost possession of; it was then rescued (thank goodness!) and it rightfully hangs in the Paley Gallery.

Every five years or so she re-appears with new creations, and I'm proud that I was acquainted with her "back when".

People here have been talking about "remixes" and so on, as though she were making soup. You dump in some potatoes, you slice in some carrots, heat, stir, and serve. This hugely understates Nina's creativity.

Pragmatically -- After reading this whole notestring fairly carefully, my opinion is that she probably should have gotten the music re-recorded, with careful synchronization, by a group of studio musicians; but that option may no longer be open to her.

Idealistically -- I think that we have lost sight of the fact that there is a "cultural literacy" aspect to all this. We quote one another, we allude to other people's creative works, all the time. The unimaginative may do so in a derivative way; but creative people make a new creation, with roots that go back to multiple sources and traditions.

Re-record the music? Such that it would be indistinguishable from the original recordings, which were the historical documents she wanted to use in the first place? I don't think that's really possible, or even desirable. See Nina's longer explanation here.

Re-recording would have done no good; Annette Hanshaw's voice is already public domain everywhere in the world except New York. The restricted part is the words and melody. Doesn't matter who's singing 'em, or who records 'em.

The interview OPENS with Nina saying people warned her not to use the music. She willingly ignored them. Sorry - FAIL!

I'm a documentary filmmaker so I am constantly stuck in the web of fair use and copyright. But here's how I've addressed these issues. Any time I need music, I ensure I have the rights to the music BEFORE I put it in my film. Notice that she's been able to negotiate down from $220k to $50k. Guess what, if she had approached them prior to filming it probably would have been $50k. Once your film is out there using uncleared music the filmmaker is completely at their mercy.

She's lucky; if I found out someone had willingly ripped me off and then was coming to me to cut a deal, I'd probably be less forgiving than if they'd come to me prior to filming.

Sorry Nina, I've seen your film and yes it was good, but whining that your failure to follow the rules is costing you distribution is not exactly a new story, nor is it compelling. But once again it serves as a reminder to new filmmakers to follow the rules or you will get burned.

Oh, and yes, not all of us are willing to give up the rights to our works in order for more people to see them. Some of us actually like to make money.

She's arguing to change the rules. You seem unwilling to engage that argument directly, preferring to slam her for daring to question the system. That seems odd; I mean, why bother to read or comment on this site at all, then?

Regarding your comment "some of us actually like to make money": I have a hunch that Nina is making more than you are, from her allegedly unrealistic distribution model. How much are you making? We're being public about the numbers here (see the little progress meter in the upper right corner of the site).

Nobody wants you to give up your "rights". We'd just like your rights not to trump other people's rights, like the right to share and make derivations from pre-existing works -- a right that was not controversial before 1709, and hopefully won't be controversial for much longer. A good system would be: you do what you want with your copies, and other people do what they want with their copies. Simple, easy to understand, easy to avoid conflicts of rights, and nobody gets hurt except for would-be monopolists.

So, to paraphrase... you say that you're a documentary filmmaker so you're constantly stuck in the web of fair use and copyright. But here's how you address these issues. You simply avoid producing any art that some corporation might want to try to prevent you from producing, unless you can afford to pay them off. You'd have to be an utter moron to go out and produce something beautiful and important without first asking permission from the lords who own the resources you're using and charge monopoly prices for them.

Don't you see that this system is *fundamentally sick* and that rather than trying to fix it you're just sitting there making fun of the people who won't play along? Historically, when an unfair and unreasonable law is passed, the ones who ignore the law and stand up for true fairness are more likely to get hurt, but ultimately they're the heroes who will be remembered in the most positive light.

Licensing music seems like it's best avoided. Best way to avoid it: all original music. Do it yourself, or if you can't, there's an indie band somewhere on the internet with the exact sound and talent you need who would go nuts at the opportunity to write a track or two for your film. It's not about 'restricting' your artistic process or 'internalizing the permission culture', Screw the 'rights holders'... by not using their 'property' so they don't make any money off it. And you're helping out an indie artist at the same time.

It's inane the copyright was extended, there's a reason for the 75 year limit in the constitution, it shouldn't have even been allowed to be extended.But what Nina should have realized is this: Artists don't make money. In-fact, artists tend to lose money when they work. She seems to understand this at some level, but she shouldn't have even tried to make this film commercial, she should have released it via internet torrent and let the masses consume it that way. Even if the film were commercial, she'd hardly make a dime on it anyway, barely enough to recoup her losses.

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